I recently received a message on FaceBook that quite literally horrified me. It said that I was using Steve McCurry’s picture of the Afghan Girl in my WordPress design and that since it was a copyright violation the least I could do was to acknowledge who the photographer is. So I immediately responded with the background: I had written a very laudatory post about a year back called Haunting Photos on this very blog, complete with references of who took the photos, where it was originally published etc, and provided links to all the original articles.

I explained that what had happened is when I provided a screenshot of Suffusion to WordPress, there was a screenshot of the original “Haunting Photos” post (which had proper crediting) and unfortunately the credit information did not appear on the screenshot. I immediately apologized and within a day got the screenshot for the theme changed on the official WordPress site. Steve understood that this was an honest mistake and appreciated the fact that I had always had the credit information on the post and gotten the image removed from the screenshot almost immediately when notified of the copyright violation. So I could breathe easy.

When I was introduced to Linux, the GPL and “free software” in 1997 I always wondered how it was possible to make money in such a model. After all wasn’t the software free? Somebody explained to me that the software was free, but you could charge for support. It seemed like a rather foolish business model because a smart guy could always look into the code and figure out what to do, and wouldn’t need to pay for support. But for the lack of a better explanation that is what I went by. A few years later I learnt that the word “free” had an intention that was quite different from the interpretation. To quote from the Free Software Foundation’s definition of the term:

“Free software” is a matter of liberty, not price. To understand the concept, you should think of “free” as in “free speech,” not as in “free beer.”

Free software is a matter of the users’ freedom to run, copy, distribute, study, change and improve the software. More precisely, it means that the program’s users have the four essential freedoms:

The freedom to run the program, for any purpose (freedom 0).

The freedom to study how the program works, and change it to make it do what you wish (freedom 1). Access to the source code is a precondition for this.

The freedom to redistribute copies so you can help your neighbor (freedom 2).

The freedom to distribute copies of your modified versions to others (freedom 3). By doing this you can give the whole community a chance to benefit from your changes. Access to the source code is a precondition for this.

A program is free software if users have all of these freedoms. Thus, you should be free to redistribute copies, either with or without modifications, either gratis or charging a fee for distribution, to anyone anywhere. Being free to do these things means (among other things) that you do not have to ask or pay for permission to do so.

And further down it states:

“Free software” does not mean “noncommercial.” A free program must be available for commercial use, commercial development, and commercial distribution. Commercial development of free software is no longer unusual; such free commercial software is very important. You may have paid money to get copies of free software, or you may have obtained copies at no charge. But regardless of how you got your copies, you always have the freedom to copy and change the software, even to sell copies.

From the page on Selling Free Software it states:

Many people believe that the spirit of the GNU Project is that you should not charge money for distributing copies of software, or that you should charge as little as possible — just enough to cover the cost. This is a misunderstanding.

Actually, we encourage people who redistribute free software to charge as much as they wish or can. If this seems surprising to you, please read on.

The word “free” has two legitimate general meanings; it can refer either to freedom or to price. When we speak of “free software”, we’re talking about freedom, not price. (Think of “free speech”, not “free beer”.) Specifically, it means that a user is free to run the program, change the program, and redistribute the program with or without changes.

So there you are. Mystery solved. I could essentially write my own software, release it as open-source and charge a fee for it if I liked.

Hence it was with more than a hint of amusement that I followed the now beaten to death debate between the founders of the Thesis WordPress theme and the founders of WordPress itself. The amusement came mostly from the fact that people in general felt that if Thesis went GPL it would have to give away the theme free of charge – a ridiculous supposition if you read the definition of “free” and the philosophy of GPL above. What’s more, even the founder of Thesis, Chris Pearson argued passionately in a head-on debate with Matt Mullenweg that if Chris made his theme GPL others could steal his work and severely undercut him. As Matt pointed out, that could happen with or without the GPL license.

Even after the debate settled with Thesis being released with a “split GPL license” (PHP is licensed under GPL, CSS and images are not), several self-appointed aficionados speculated that Thesis would now have to be given away free of charge, which is not what this debate was about at all! As an aside there is actually code comparison done between Thesis and WordPress by Drew Blas to prove that Thesis lifted code from WP and was hence in serious violation of GPL. But that is a story for another day.

While we are on the topic of free software, I recently received a very interesting email. As you probably know, I am the author of Suffusion, a WordPress theme that is both free like “free speech” and free like “free beer”. I sometimes like to gloat about Suffusion, so here is a little snippet: Suffusion has close to 30,000 lines of code. If you do the mental arithmetic you will see that written over a period of 1 year, this amounts to close to a 100 lines of code a day, which is about 15-20 times the industry average for coders!! Of course, I rarely write 100 lines of code a day and I do a good bit of copy-pasting with my own code, but this is a very very impressive figure nonetheless, particularly in the backdrop of the fact that this has mostly been churned out while I am traveling, after completing my regular job each day, as a means to curb ennui. But I digress.

The email was from a theme reviewer at WordPress and the body of the email said:

Your theme was recently submitted by someone else into the wordpress theme directory.

Well, I knew that imitation was the sincerest form of flattery, but I found this tough to react to. Obviously I was amused that somebody had thoug
ht Suffusion was good enough to be copied. The smart folks of Geek Infos, who actually did the plagiarizing simply replaced the author URL that you define for the theme as something pointing to their site, while leaving everything else intact, including the footer of the theme that says “Suffusion WordPress theme by Sayontan Sinha”! Obviously they found it easier to steal the code but were too incompetent to figure out where to edit the footer! So I would get the support queries, while they would be linked from WP’s official site. Interesting business model

If you have followed the post so far, you might be wondering why they weren’t in their rights to do plagiarize Suffusion. After all my source code is available for change. That is where the difference between copyright and license comes in. You see, I am the distributing the theme under a GPL license, but I still hold the copyright for it. Again, it is best explained in the FAQs about GPL. That is the distinction that most people failed to get in the Thesis vs. WP argument – Chris Pearson still would hold copyright over his creation, charge for his theme and go after people who infringed; none of that would change. Just the license and the terms of redistribution would.

PS: I am a novice when it comes to legalese. What I have written here is based on my understanding of stuff I have read at different places. So it is probable that I have gotten something wrong – feel free to correct me if you spot errors.

11 Responses to “Plagiarism, Copyright and Licensing”

Having spent the better part of an evening tweaking Suffusion to suit my own needs, I have to offer a big thank you for making it available in the first place and a big kudos for the amount of work you put into it.

The concept of ‘free’ seems to be more and more misunderstood on the Internet these days – with the more moronic of the web populace believing that free means they can do what they like with it. Any fool with half an ounce of common sense and half an ounce of respect for other net-users knows that free doesn’t mean, “take someone else’s work and try to pass it off as your own”.

Thanks again for the ‘free as in beer’ theme. I won’t be removing your name from the footer as I believe it deserves to be there.

While I am not entirely aesthetically blind, I do know that I have some way to go in terms of sprucing up the typography aspect of Suffusion. Plus the general aesthetics of Suffusion leave a lot to be desired.

You really did a great job considering the author of the photos because it is provided that there is a copyright law on what you did. You also explains good on the “free” term on the internet that it has different meanings behind. Thanks a lot! Keep up the good work!

The theme is amazing and has made my buddypress requirement on one of my sites so much more pleasant to deal with. Thanks for all that you do. As for the copyright, it is great you reached out to explain and that Steve understood – so many times it’s just about giving credit where credit is due. Phil’s right, your name deserves to be in the footer for a great piece of work. Thanks again!

I chose Suffusion for my new site because it seemed by far the best theme for what I want to do. I really appreciate that there are so many modifications clearly laid out – I really don’t know what I’m doing but find it easy to use. Also, I got stumped on a couple of things and did a search on your Aquoid site and found the answers – in language I could understand! So a HUGE thanks to you for creating this and sharing so generously:)

First, thank you for Suffusion, I am currently testing it out for some new sites I am making and it is wonderful.

As I am not only a webmaster, but also a semi-pro photographer, I would like to clarify things, to pay you back some time that you unknowingly you invested in helping me out at the other side of the world:

– Photographs are copyrighted at the moment they are taken, whether they are published or not.
– If you use a photo on a website without pre-approval from the copyright owner and/or licensor you are breaking copyright law.
– It does not make any difference if your site is commercial or not
– it does not matter if you credited (linked back etc) or not.

If the photographer licensed his photographs under a Creative Commons licence, then the last 2 could change, depending on the exact license used.

Some license variations allow usage, but only when credited, others when used non-commercially (and yes, a site with advertisements or otherwise promoting a business or product is commercial), others only when unaltered (so no removal of borders, watermarks etc), or any combination.

There are other even freeer licenses (See WikiMedia commons, as most images there are released to the public without limits, though not all) and some are stricter.

But unless one of these licenses is specifially applied and this is verifiable through the source/copyright owner, usage of images is restricted. Usage like you did would like making a (very) long post displaying the unabridged Harry Potter novels and linking back to the writer’s and/or publishing house. Or even making a 100% copy of the New York Times website and crediting. The linking does not make unauthorized use authorized.

I used to have my images under a CC license as I got many requests for usage, many from good people. I had to abandon this when I started licensing some image through Getty,as they cannot accept rights-managed images that are ‘out in the open’ and won’t select any new images if they do not know its history (how it has been used).

That does not mean that I usually give permission for people to use my other ‘non-getty’ images for non-profit, humanitarian and/or teaching purposes (I have a lot of culture and nature shots, see the ExposedPlanet photoblog). But they still must ask (and receive!) permission in advance.

A pro photographer like Steve Curry certainly has this picture licensed through Getty, Corbis or one of the other big ones. At that moment, he cannot even license pictures directly, even when asked, the one he signed a contract with (Getty), must approve all usage, including usage on your screenshot, whether credited or not.

If Steven would approve usage to you, he would break his contract with Getty. If Getty would approve usage without payment, they would break the contract with Steve. So nobody can approve a licensed image, it has to bought, it is -like the books- a licensed product.

And even not so, if he still owns all the rights, it would still be copyrighted and cannot be used without his permission.
Again, though photographers are usually thankful for links as it helps tremendously, it is not enough to allow usage of a photo without explicit permission.

A totally different but important side of this are the rights of the girl in the photo. Unless she has signed a model release (which she might have or maybe that is why Curry went back to find her again!), releasing all her rights to the photographer (who can release this to Getty etc), her image can only be used by the photographer to promote the photographer. This includes selling art, books, use on the photographer’s website etc.

So he can make money of an image, but not license it commercially without signed and witnessed approval from the subject and in this case, her parents. This is to protect her from being used on billboard advertising facial cream, selling eye surgery or a store selling clothes for children etc (or even far worse!).

By the way an exception is editorial usage (though the line is thin and not always clear), the photographer could sell the image to a newspaper when there is a valid recent reason to do so, for example when they write a news story about the death of this woman made famous by this picture, or an article about new girl-schools in Afghanistan.
Or when it is a ‘public figure': that’s why President Obama does not have to approve when a photographer takes his picture when visiting another country officially, so for public work. (Private moments are a different legal issue though). But such an image can never be used in advertising (without White House permission that is) for example to promote “Airforce One Airlines etc.”

I have had pictures stolen (used without permission) many times, and it is getting tiresome. One of the reasons I am using Getty (they pay lousy) is that they have experienced lawyers protecting my images, leaving me time to actually go out and shoot.

Just because it is online does not make it free, the internet is a distribution channel like many others. That said, I support open source, CC-images and much more, it makes the world a better place. If people would just ask permission, they would normally get it.
Then again, if I could live of my photos, I could spend more time sharing the planet and make it even better

So that is why I am licensing photos, selling posters, writing books. I am a minimalist and do not need much, but still need food and cameras. The supermarket does not agree with me eating their veggies for free in return for a referral to anybody who sees me eating..

So let me know if you need an image from ExposedPlanet, and if it is not licensed I will likely give permission to use it for your site(s), or even for inclusion in the screenshots, as long as the theme stays under GPL and the image is visibly credited and linked back. It will make the theme ‘look better’.
Note that this does not mean that anybody using the theme can use my images, I am only giving you permission, not the users of the theme! Else they could abuse my image in similar ways as mentioned above, I do not want my images on a hate site etc.. Again the internet is just a channel, like billboards, magazines, television etc.

Thanks again for your work, sorry for the long comment! Actually it will make a good starting point for a post on my photography tips blog, so thanks for the opportunity to make me write a bit

Harry,
Thanks for the extremely detailed comment. I normally respond to comments here quite quickly, but here I wanted to validate something before responding.

While I agree in general with what you are saying, there are a few issues. The first thing you have to realize is that Steve McCurry’s photo was associated with a National Geographic article. So really, they had purchased the photo from him (or gotten rights to use it). Second, National Geographic’s article has very prominent “Share” links at the bottom supporting various social media. That is akin to giving permission to users to share content of the article by providing a back-link.

Also note that there is a significant difference between putting up an unabridged version of Harry Potter with a back-link to Amazon for buying the book, versus a fair-use description of what the Harry Potter books are with a back-link to Amazon (I have one such review article on this blog). My understanding is that the way my article was written falls squarely in the second bracket and it would hold up well in a court of law for fair-use. Note here that I wasn’t referring to Steve McCurry’s photo alone – I was talking about the whole story associated with the photo. Also note that I am not referring to the WordPress screenshot, which was wrong. Instead I am referring to my original post for that article.

The next thing is the model release. I am quite sure there was none in this case for the original photo as well, since having a model release would mean that National Geographic would know the name of the person in the photograph, which they did not until they revisited Afghanistan several years later.

Next, the reason for my delay. Thanks to your alerting me about Getty, Corbis etc I went an extra step. I first wrote to National Geographic asking if it was okay to use the photo the way I had. They didn’t voice any objections to my article itself (as I mentioned above, the social media sharing icons make this moot), and they directed me to Magnum Photos, who represent Steve McCurry. Note that I had already gotten an okay from Steve earlier saying something like “If your article has back-links and credits it is okay”. I wrote to Magnum with details of the situation and asked them if the article was okay. They said something like “Since Steve and Bonnie are fine with this, there are no issues”. So that is where it stands.

Lastly, thanks for the detailed information about how photo licensing works. I am quite gracious about giving credit where it is due, and your insights will ensure that I will be duly careful whenever I am dealing with licensed works.

Je Suis

I am the author of the WordPress theme Suffusion and the Photonic plugin. However I don't do any freelancing work involving Suffusion or anything else. Please use the Support Forum for any support related to the theme or plugin.